DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

  ex-MM2(SW), USN
Docket No. ND05-00295

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051028.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s representative (Veteran’s of Foreign Wars) at the time of the Applicant’s personal appearance hearing supersede those submitted originally on Form DD-293.

1.  “The Applicant was afforded inadequate representation at his administrative discharge board.”

2.  “The Applicant was separated over the objections of the only enlisted man on his admin discharge board.”

3.  “ The Applicant was boarded prior to receiving level 3 alcohol treatment.  He had obvious rehabilitative potential.”

4.  “The Applicant was boarded and discharged after his first NJP in 15 years.  The 2 specs of article 134 are not serious violations.”

5.  “The Applicant is seeking clemency in order to facilitate reenlistment in the Armed Forces during a time of war.”

6.  “The Applicant has not touched alcohol in more than 10 years.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, dated July 22, 2004
Certificate of completion of LEVELS Recovery Program, dated November 30, 2003
Food Manager certification card, dated June 13, 2002
Applicant’s DD Form 214
Character reference from S_ L. L_, MS, Program Counselor, The Salvation Army, dated September 7, 2005

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	791102 - 791120	COG
	Active:   USN			791121 - 841028	HON
		   USN			841029 - 890125	HON

Period of Service Under Review:

Date of Enlistment:  890126		Date of Discharge:  950609

Length of Service (years, months, days):

	Active:    06 04 15	(15 06 19 total service)
	Inactive:  None

Age at Entry:  29			Years Contracted:  6 (19 month extension)

Education Level:  12			AFQT:  26

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.86 (10)		Behavior:  3.66 (10)		OTA:  3.84 (10)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  GCM (3), SSDR (5), NAM, NEM, MUC, NUC, KLM, SOSR, HSM, SWASM (3)

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890126:	Applicant reenlisted for six years (3rd enlistment).  MM2 onboard USS Paul (FF-1080).

920810:	Applicant convicted of DUI.  

921216:	Advanced to MM1.

931011:	3rd Good Conduct Award.

940617:	Navy Achievement Award.

940702:	Extended enlistment 19 months for school (new EAOS 960825). 

940902:	Courtesy turn over of Applicant to Hampton Area Shore Patrol, Applicant charged with drunk and disorderly, disrespectful in language to CPO and PO1 and naked in public.

940902:	USS Theodore Roosevelt (CVN-71) Medical:  Assessment - alcohol abuse.

940929:	NJP for violations of UCMJ, Article 91: Disrespect to a CPO and PO1 shore patrol men on 940902, to wit: by saying “Southern Mother-Fuckers” and “Dumbass Mother-Fuckers”, violations of UCMJ, Article 134 (2 specs): (1) Drunk and disorderly of a nature to bring discredit upon the armed forces, (2) indecent exposure by exposing his naked body to public view on 940902.
	Award: Forfeiture of $799 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

941005:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and by reason of alcohol abuse rehabilitation failure.  The characterization of your service may be Other Than Honorable.

941007:	USS Theodore Roosevelt (CVN-71) Medical, health record documents previous Level II treatment completed in 1993.

941018:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an administrative discharge board.

941219:	Administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and alcohol abuse rehabilitation failure, by a vote of 2 to 1, that the misconduct warranted separation, and by unanimous vote recommended discharge characterization of general (under honorable conditions).

950112:	Commanding Officer, USS Theodore Roosevelt (CVN-71) recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and by reason of alcohol abuse rehabilitation failure.  Commanding Officer comments, “MM2 M_ (Applicant) was disciplined at NJP for violations of UCMJ, Articles 91, disrespect to a chief petty officer and a first class petty officer and Article 134, (2 specifications, drunk and disorderly and indecent exposure).  He has been through Level II Rehabilitation and is not medically eligible for Level III.  He has committed serious misconduct and completely failed to take advantage of the counseling and support services offered to him by the Navy.  Accordingly, I concur with the board’s findings and recommendations for discharge with a characterization of service as General under honorable conditions”.

950203:	BUPERS request clarification of administrative board, “Record of proceedings indicate SNM did not commit misconduct due to commission of a serious offense, where as board indicates SNM did commit misconduct do to commission of serious offense.”

950216:	BUPERS directs Commanding Officer, USS Theodore Roosevelt (CVN-71) to reconvene administrative discharge board and reexecute report of board in accordance with MILPERSMAN 3640350.8.  Specifically, state whether information from prior periods of service or information from before enlistment in navy was considered when recommending characterization of service.

950227:	USS Theodore Roosevelt (CVN-71), Medical:  Assessment – alcohol abuse.

950305:	Naval Hospital Portsmouth, Psychiatry Clinic:  Diagnosis of alcohol dependence and recommendation for Level III treatment.

950313:	Report of administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and alcohol abuse rehabilitation failure, and by a vote of 2 to 1, that the misconduct warranted separation, and by unanimous vote recommended discharge general (under honorable conditions).  Activities from prior enlistments or periods of obligated service were not considered on the issue of characterization.

950403:	BUPERS directed the Applicant's discharge, general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

980609:	BCNR decision, docket 9168-97.  Ruled no error or injustice.

000306:	NDRB documentary record review Docket Number ND99-00854 conducted.  Determination: discharge proper and equitable; relief not warranted. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950609 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A and B).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record.  Certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by nonjudicial punishment (NJP) for violations of UCMJ Article 91 (disrespect toward superior noncommissioned and petty officer) and UCMJ Article 134 (drunk and disorderly and indecent exposure).  Violations of Article 91 constitute the commission of a serious offense, as defined by reference (A), the misconduct for which the Applicant was discharged.  Separation under these conditions generally results in a service characterization of less than honorable.  Relief is not warranted.

The Applicant contends that his discharge was improper because he received ineffective assistance of counsel.  The Applicant testified that he had met with his counsel several times prior to the administrative board.  Additionally, the evidence of record shows the Applicant’s attorney prepared supporting documents and called character witnesses on his behalf.  Furthermore, he testified he was unaware that the attorney had written a letter to the Chief of Naval Personnel on his behalf.  The Applicant bears the burden substantiating his claim through the presentation of substantial and credible evidence.  Based upon the evidence of record, the Applicant was properly represented and counseled.  Relief denied.

The Applicant contends that his discharge was improper because he “was boarded prior to receiving Level III alcohol treatment”.  Naval regulations require a diagnosis of alcohol dependence in order to attend Level III treatment.  The Applicant testified that he lied to CAAC counselors and doctors when questioned regarding his alcohol use.  This resulted in a documented diagnosis of “alcohol abuse”, not alcohol dependent.  Following the administrative discharge board’s decision and documented alcohol related incidents he was then diagnosed as alcohol dependent.  The Applicant testified that he was afforded the opportunity to attend Level III treatment following this diagnosis.  Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing.  Relief denied.  

Additionally, the Applicant contends that his discharge was inequitable because the only enlisted member of his administrative board objected to his discharge. The record documents that the Applicant’s administrative discharge board was properly appointed and convened in accordance with MILPERSMAN 3630550/3630600.  This instruction requires three uniformed members of equal voting status and a simple majority decision.  The record does not contain evidence nor did the Applicant submit evidence that demonstrates an inequity or impropriety in the action of the administrative board’s members.  The Applicant’s discharge was proper and equitable.  Relief denied.  

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  The NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  This issue is without merit.  Relief denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant stated that he had not touched alcohol in more than 10 years, provided a letter of completion of from the Salvation Army’s addiction recovery program “LEVELS” and a letter of reference from the Salvation Army’s program counselor.  Furthermore he discussed his service as volunteer counselor at jails and prisons as well as his church membership, and family involvement.  Although the Board commends the Applicant’s personal achievements and recognized his volunteer service to the community, after careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91 for disrespect towards superior noncommissioned of petty officer if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023